Here is the case , Laddcap Value Partners LP v. Lowenstein Sandler PC, 600973-2007
Decided: December 5, 2007 ,Justice Carol Robinson Edmead ,NEW YORK COUNTY
Supreme Court
Counsel for Plaintiff: Danzig Fishman & Decea
Counsel for defendant: Arkin Kaplan & Rice LLP

We reported on this abusive practices/gender sarcasm case last week. 

"I am "not aware of any rule or law which requires civility between counsel" (Thomas B. Decea, Esq.).

The genesis of this application is a claim of contumacious, abusive, and strident conduct by counsel during a deposition.

Michelle Rice, Esq. ("Rice"), moves pursuant to CPLR 3104 for a Court-appointed referee to supervise further depositions in this case and for an order directing that further depositions be held at the courthouse. Rice represents the defendant/third-party plaintiff, Lowenstein Sandler PC ("Lowenstein LP"), against claims of legal malpractice by plaintiff Laddcap Value Partners, LP ("Laddcap Partners").

On October 1, 3 and 4, 2007, Rice took the deposition of plaintiff’s representative, Robert B. Ladd (the "witness"), who, along with Laddcap Value Associates ("Laddcap Associates"), are third-party defendants in this action. The witness is the sole employee of both plaintiff Laddcap Partners and Laddcap Associates. The witness was represented by Mr. Thomas B. Decea ("Decea").

Rice’s motion is precipitated by the behavior of Decea during the three days of depositions of the witness. Rice points out that during the course of the witness’s deposition, Decea repeatedly directed the witness not to answer certain questions posed to him, which were, on many occasions, followed by inappropriate, insulting, and derogatory remarks against Rice concerning her gender, marital status, and competence. Although both counsel agreed that all objections, except those as to form, were preserved, Decea made numerous speaking objections, and threatened to leave the deposition in response to such "leading" questions. Rice also contends that Decea asked her several times, off the record, whether she was married.

In light of the above, Rice argues that Decea’s conduct was intended to intimidate her and interfere with her ability to zealously defend and conduct further depositions, in violation of New York’s Code of Professional Responsibility, EC 7-37, DR 1-102 [A][6], New York Executive Law §296((1)(d), Rules of the Chief Judge of New York §25.16, and Uniform Rules for the Conduct of Depositions. Because of Decea’s tactics and his demonstrated inability or unwillingness to comply with rules governing professional conduct, the Court should exercise its discretion under CPLR 3104(a) and appoint a special referee to ensure that the depositions are completed in a timely and cost-effective manner.

In opposition, Decea maintains that while he "aspires to be civil" to other counsel, he is "not aware of any rule or law which requires civility between counsel." According to Decea, that Rice was intimidated by him was "unfortunate" and does not substantiate any improper actions on his part. Decea complains that Rice was antagonistic toward him and the witness, was sarcastic with her questions, and harassing with her facial expressions. When Rice threatened to file a complaint against him with the Court, Decea asked to speak with her privately, whereupon both parties shook hands in agreement that if she refrained from asking leading and compound questions and badgering the witness, he would try not to interrupt her and limit his objections. According to Decea, "There was never another word about it for the rest of the week." When Rice threatened to contact the Court during the first day of depositions, Decea offered to arrange a conference call. However, Rice then declined, and continued the deposition. Now, on the eve of producing her client for a deposition, Rice "plays the gender card." Decea claims he instructed the witness not to answer approximately four times, and on each occasion, stated the basis for his objection an proffered a proper question. Decea contends that his references to "hun" and "girl" were not malicious, and if Rice would have advised him that she was offended, he would have stopped. If Rice was truly offended, she would not have completed three days of depositions. Rice’s motion is a delay tactic to permit her client to assess the plaintiff’s testimony and justify the fact that Rice is unavailable to for the deposition of her client scheduled for the following week. Decea intends to move for costs and sanctions."

This case from Washington state, Schmidt v. Coogan, illustrates two common situations in legal malpractice.  The first is on the lawyer’s side.  Client slips and falls on spilled shampoo in a store.  She goes to the attorney, who happily takes the case.  He tells the client that it’s a good case, and he will give it his all.  Client checks in and tries to make sure that everything is going well. 

On the last day of the statute of limitations she finds out that the attorney has not filed, and isn’t even in the office.  Someone else hastily drafts a complaint and files it.  Problems?  Wrong defendant, wrong facts.  Motion to amend is denied.  Case dismissed.

The second situation is proving that the client would have succeeded when the legal malpractice case is brought.  Here, attorney defendants won’t settle, case goes to trial.  Verdict for plaintiff, Motion for a directed verdict denied.  New trial on damages, as jury was "inflamed."

After all this, the intermediate appellate court reverses and directs verdict for attorney on theory that plaintiff could not prove notice of defective condition to the store.  Now, on the same facts,  Supreme Court of Washington reverses again, and enters judgment for plaintiff.

Lawyers handle cases for people who are sometimes desperate.  While it may little matter whether a large corporations loses a million dollars in a deal, many times an attorney deals with much more dire circumstances for the client.  They may have lost a life’s savings; children may suffer.

This tragic story involves an attorney who overspent, and could not keep up.  His solution was to steal from the escrow account.  The victims have lost $ 750,000.  The attorney shot himself, after the FBI became involved.

The insurer has successfully disclaimed coverage.  The many victims, including the attorney’s wife and children are not so lucky. "A legal malpractice insurer has no duty to defend or indemnify a Cumberland County, Pa., lawyer who allegedly stole more than $780,000 from his clients and gambled much of it away before committing suicide when he learned that he was under investigation, a federal judge has ruled.

As U.S. District Judge John E. Jones III described it in his 38-page opinion in Westport Insurance Corp. v. Hanft & Knight, the case involved "the tragic circumstances that resulted from a lawyer’s double life."

Here is a scholarly article on Canadian legal malpractice trends from the Practice Pro blog site.  Its conclusion is that wills & estates legal malpractice cases are on the rise, and will continue this trend. 

Risk managers look to frequency and severity in their analysis of trends.  Frequency is the raw number of cases.  Severity is the potential dollar amount of the losses.  As estates [and the wills that create them] benefit from the prior years of real estate and stock appreciation, claims concerning malpractice in their handling will rise in severity, simply as a matter of inflation and appreciation.

Beyond that, the frequency is also rising.  Historically, education on the issues of legal malpractice in a specific area and publicity of successful cases contributes to this trend.

Everyone knows that oil drilling is a cutthroat buisness. Here is an interesting story.  Did the law firm capitilize on inside knoweldge?  Plaintiff’s story is that it is in the niche business of developing old oil wells, and was in the process of buying from another business in bankruptcy.  They had to hire a W.Va. law firm to complete the transaction.  They charge that the law firm simply saw an opportunity, set up a rival purchaser, dragged their feet and inserted the rival into the deal.

"Between May 25 and June 2, Hinkle says it learned that Elk River Energy was formed only two weeks before the May 25 meeting and that Dollison, a partner at Bowles Rice, "was not only the organizing attorney," but "he also had a financial stake in Elk River Energy."

Had Hinkle known of what it called this "absolutely inexcusable conflict of interest," it never would have retained Bowles Rice nor would it have disclosed confidential and proprietary information consisting of the terms of the agreement with Buffalo.

On June 2, 2006, Chincheck informed Hinkle – "in a transparent attempt to excuse her culpability," according to the complaint – that she would no longer being representing the company.

Three days later — through current counsel Hugo N. Gerstl of Monterey, Calif. – spoke with Buffalo’s bankruptcy trustee, who said Elk River was trying to back out of its contract with Buffalo and trying to dissolve. Meanwhile, the trustee also moved to sell the subject property in bankruptcy court. The "Objection or Upset Bid" date was set for June 14, 2006. "

New York Lawyer reports: "Pillsbury Winthrop Shaw Pittman is one step closer to being forced to return about $4 million to a former client.   These bankruptcy legal malpractice cases are becoming more and more frequent.

The Chapter 11 trustee for SonicBlue Inc. filed a statement on Tuesday supporting a November motion, filed by SonicBlue, asking Pillsbury to pay back the fees.

Tuesday’s statement took the motion even further. In it, Trustee Dennis J. Connolly suggested that the judge hold off on setting an amount so that other issues such as interest or even potential damages could be considered. "

Anthony Lin of the NYLJ today reports a recent decision of Justice Edmead of Supreme Court, New York County. It is either an appalling story of gender bias and all around smarmy behavior or some simple transcriptional errors.  Was it "hon" or "hun."  Calling the adversary Attilla the Hun [as the attorney claimed] might even be good.  Here is the story:

"A New York judge has ordered court supervision of a lawyer for "objectionable conduct" toward a female opposing counsel who he said had a "cute little thing going on" during a deposition.

According to transcripts of the deposition, Thomas B. Decea of Danzig Fishman & Decea in White Plains also called Michelle A. Rice of Arkin Kaplan & Rice "hon" and "girl" and asked her why she was not wearing a wedding ring. The judge said Mr. Decea’s behavior reflected gender bias as well as "a lack of civility, good manners and common courtesy." She said the appointment of a referee was a means of "guarding against future objectionable conduct" by Mr. Decea.

But Mr. Decea yesterday denied acting inappropriately. He vowed to appeal Justice Edmead’s decision and said many of his comments were wrongly transcribed or taken out of context. He also accused the judge of violating his right to due process by not providing him with copies of the deposition transcripts on which she based her order.

The underlying case is a legal malpractice suit filed by a hedge fund against its former law firm. Mr. Decea, 48, was the lawyer for hedge fund Laddcap Value and its manager, Robert B. Ladd; Ms. Rice, 46, was representing the fund’s former firm, Lowenstein Sandler of Roseland, N.J. This is not a white collar interview that you’re sitting here interviewing something with your cute little thing going on," Mr. Decea said, according to the transcript, later telling her it was "nothing personal, dear."

After Ms. Rice told Mr. Decea she thought his comments were indeed personal and offensive, he said: "Your skin is getting thin now."

At another point in the deposition, Mr. Decea referred to Ms. Rice as "hon." After she questioned his use of the term, Mr. Ladd jumped in to suggest that Mr. Decea had meant Hun "[a]s in Attila" and that the remark was not personal.

"As in Attila? I don’t even understand that," Ms. Rice replied.

Later in the deposition, Mr. Decea questioned Ms. Rice’s ability to try the case.

"You better get somebody else here to try this case, otherwise you’re going to be one sorry girl," he said. "

This case is instructive on several levels.  First, it is one of a coming wave of lgal malpractice cases against defense attorneys in civil litigation.  Second, it demonstrates the NJ "net opinion" rule, in which an expert must give more than a "personal opinion."  The expert must give a standard of care, and must reference stautues, cases and events in the case.  CARBIS SALES, INC., d/b/a
CARBIS LADDERS, and SAFE STEP REINSURANCE, INC., Plaintiffs-Respondents v. ISRAEL N. EISENBERG, ESQ., and POST & SCHELL, P.C., formerly known as THE LAW OFFICES OF
STANLEY P. STAHL,

This opinion vindicates Prof. Bennet Wasserman, the expert.  He also happens to be a practitioner in NJ legal malpractice cases.  Finally, the case illustrates both how badly the defense attorney bungled the matter [a big product liability case which should have been won by defense ends in a $ 1 million verdict, and then afterwards, how badly the defense of the legal malpractice matter foundered.  They were late in making motions, and late in asking for discovery.

"In this legal malpractice action, defendants Israel N. Eisenberg and his former law firm, Post & Schell, P.C., appeal from a final judgment awarding their former clients, plaintiffs Carbis Sales, Inc. (Carbis or plaintiff) and Safe Step Reinsurance, Inc. (Safe Step) $704,405.20 in damages. On appeal, defendants contend that the trial court erred in admitting the net opinion of plaintiffs’ expert and in refusing them discovery of a memo prepared by an investigator retained by plaintiffs. Plaintiffs cross-appeal, arguing that the trial court erred in denying them a new trial on damages or additur."